Opinion
No. CV03-040 65 97 S
February 24, 2005
MEMORANDUM OF DECISION
Before the court is the defendant's motion to strike counts one, six and seven of the plaintiff's complaint.
On October 2, 2003, the plaintiff, Patricia Blaskower filed a seven-count complaint against the defendants, Tennis Club of Trumbull (Tennis Club or club) and Edmond Pagano, the owner of the club. This action arises out the injuries and losses the plaintiff allegedly sustained as a result of the defendants' termination of her position as a tennis instructor at the Tennis Club.
The plaintiff alleges that Edmond Pagano is the owner of the Tennis Club as well as a signatory, in his individual capacity, to the plaintiff's contract.
The plaintiff alleges the following facts in the complaint. On May 31, 1999, the parties entered into a written contract which provided that the plaintiff would be compensated for her services as a tennis instructor at the tennis club for a five-year period. Pursuant to the terms of the contract, the defendants could not terminate the contract unless they had good cause, and then only after providing the plaintiff with ninety days written notice. Pursuant to the contract, the plaintiff was an independent contractor and the defendants did not have control over her teaching methods or style. The plaintiff alleges that after she began working at the club, defendants' agents, fellow instructors, staff etc., engaged in a pattern and practice of verbal harassment that interfered with her ability to obtain instruction appointments and benefits under the contract.
The plaintiff alleges that on May 16, 2003, she was constructively discharged from her position in that she was forced to resign due to poor working conditions at the club. She specifically alleges the club's agents and employees threatened her and disparaged her in front of her students. She further alleges that when she complained to the defendants about the threatening comments, Pagano indicated to her that he did not have a problem with the comments that were made. On May 19, 2003, the plaintiff returned to work at the club at the urging of her students. The defendants then formally fired her in the presence of her students.
In counts one through seven, respectively, the plaintiff alleges the following causes of action against the defendants, breach of contract, breach of the covenant of good faith and fair dealing, tortious interference with her performance under the contract and with her reasonable expectations of business relationships with her students in violation of the Connecticut Unfair Trade Practices Act, defamation, negligent infliction of emotional distress and intentional and/or reckless infliction of emotional distress.
On April 5, 2004, the defendants filed a motion to strike counts one, six and seven on the grounds that they fail to state a claim upon which relief can be given. On April 13, 2004, the defendants filed a memorandum in support of their motion to strike. On May 7, 2004, the plaintiff filed a memorandum in opposition to the motion to strike.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly." (Internal quotation marks omitted.) Broadnax v. New Haven, supra, 270 Conn. 173. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
The plaintiff first argues that the motion to strike should be denied on two procedural grounds: 1) the defendants failed to comply with the requirement of identifying in the motion the specific grounds on which they contend that her complaint was legally insufficient; and 2) the defendants did not file their memorandum at the same time they filed the motion. Practice Book § 10-41 provides: "[e]ach motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."
The Appellate Court has stated that "Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency `shall distinctly specify the reason or reasons for each such claimed insufficiency.' Motions to strike that do not specify the grounds of insufficiency are `fatally defective' and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike `that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself' . . . Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986) . . ." (Citations omitted.) Barasso v. Rear Still Hill Road, LLC., 64 Conn.App. 9, 13-14, 779 A.2d 198 (2001). In this case, however, the motion to strike is not fatally defective because, as detailed below, the defendants do specify the particular grounds on which they claim the counts at issue are insufficient.
As to the timeliness of the defendants' memorandum, which they filed eight days after they filed the motion to strike, Practice Book § 10-42 states in relevant part: "[e]ach motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Although Practice Book § 10-42 requires that a motion be "accompanied" by a memorandum, generally courts are not inclined to require rigid adherence to rules as to when a memorandum must be filed. See CT Page 3501 Southern New England/SBC v. Balf Co., Superior Court, judicial district of New Haven, Docket No. CV 03 0482272 (August 4, 2004, Skolnick, J.) (court exercises discretion to consider untimely memorandum objecting to motion to dismiss); Papas Group, Inc. v. Turner, Superior Court, judicial district of New London, Docket No. CV 01 559336 (February 26, 2002, Martin, J.). (court exercises discretion to consider untimely memorandum objecting to motion to strike). This is in keeping with the principle stated in Practice Book § 1-8 that: "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."
The case that the plaintiff relies on to support her argument on this issue is distinguishable in that, in that case, the movants failed to file a memorandum either with or subsequent to filing their motion to strike. See Evans, Feldman Boyer v. Moffet, Superior Court, judicial district of New Haven, Docket No. CV 00 045080 (September 20, 2001, Zoarski, J.). Moreover, the plaintiff does not show that she was prejudiced by the eight-day delay. Indeed, the plaintiff requested a thirty-day extension of time to respond to the motion to strike, and the court, Doherty, J., granted her request. The court will, therefore, consider the merits of the defendants' motion to strike.
The defendants assert the following in their motion to strike: 1) In count one, the plaintiff fails to allege facts that support a claim of constructive termination; 2) in count six, the plaintiff fails to allege conduct by the defendants that is sufficient to support a claim for negligent infliction of emotional distress; and 3) in count seven, the plaintiff fails to allege conduct by the defendants that rises to the level required to maintain a claim for intentional infliction of emotional distress.
I Count One — Breach of Contract
In count one, the plaintiff alleges that the defendants breached the parties' written personal service contract in that they both constructively and formally terminated the contract without good cause and without providing her with ninety days written notice. She claims that this caused her to suffer both economic and non-economic damages. The defendants assert that count one is legally insufficient to state a claim for constructive discharge both under the law that applies to independent contractors and the law that applies to employment relationships. The plaintiff counters that the defendant mistakenly focuses on her constructive termination allegations and that she has adequately alleged conduct by the defendants that constitutes breach of contract.
The court agrees with the plaintiff's assertion that she has adequately alleged a cause of action for breach of contract. Therefore, in the context of this portion of the memorandum, the court is not required to determine whether the plaintiff has adequately alleged a claim for constructive discharge or whether the principles that apply to independent contractor or employment relationships should apply. "[T]he key elements of a breach of contract action considered by the court are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Bouchard v. Sundberg, 80 Conn.App. 180, 189, 834 A.2d 744 (2003). Here, the plaintiff alleges that she entered into an agreement; she performed services for the defendants according to the terms of the agreement and the defendants breached the agreement by interfering with her performance, and constructively and actually terminating her without good cause and without providing her with adequate notice. "[W]hether there was a breach of contract is ordinarily a question of fact." (Internal quotation marks omitted.) Benederto v. Wanat, 79 Conn.App. 139, 152, 829 A.2d 901 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002). The court finds ample facts alleged on the complaint to support a cause of action for breach of contract. Therefore, the defendants' motion to strike as to count one is denied.
II Count Six — Negligent Infliction of Emotional Distress
In count six, the plaintiff alleges that the defendants knew or should have known that their conduct, which occurred during the course of the contract and culminated in incidents that occurred in May 2003, as described above, could reasonably cause her emotional distress. The defendants contend that they cannot be held liable for negligent infliction of emotional distress arising out of conduct that occurred during the plaintiff's continuing employment in that employment law principles limit their liability to conduct that occurred in the termination process. In addition, they argue that the conduct that arose during that process was not sufficiently wrongful to support this cause of action. The plaintiff counters that the limitation of Parsons should not extend to this case because the parties did not have an employment relationship.
"In general, to prevail on [a claim for negligent infliction of emotional distress] a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748 (2005). "Such a claim in the employment context arises only where it is `based upon unreasonable conduct of the defendant in the termination process' rather than in an ongoing employment relationship." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997). Finally, "to prevail on a claim of negligent infliction of emotional distress arising in the employment setting, a plaintiff need not plead or prove that the discharge, itself was wrongful, but only that the defendant's conduct in the termination process created an unreasonable risk of emotional distress." Olson v. Bristol-Burlington Health District, supra, 87 Conn.App. 6.
The defendants argue that the limitation recognized in Parsons, should apply here in that employment law principles govern the parties' relationship. According to the defendants, the plaintiff's description of the actual conditions under which she worked support the application of employment law principles to this case. In addition, the defendants argue that public policy concerns examined in Parsons, namely, the promotion of a productive workplace without the chilling effect of a lawsuit, the avoidance of the threat of increased litigation and the business interest an employer has in promoting mutual harmony among teaching professionals to present an image to the general public, also favor the application of the Parsons limitation to this case.
The defendants argue that there was an employment relationship between the plaintiff and the club because the plaintiff alleges that she was subject to pay review, prohibited from junior tennis instruction and was the subject of criticism and conflict from club staff.
The court concludes that employment law principles should not be applied in this case because, according to the allegations in the complaint, the plaintiff was an independent contractor, and not an employee of the defendants. "The legal incidents of the employer-employee relationship, on the one hand, and the employer-independent contractor relationship, on the other, are well established. In Alexander v. R.A. Sherman's Sons Co., 86 Conn. 292, 297, 85 A. 514, we adopted the definition that [an] independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. This definition has been amplified in subsequent cases but at no time has the basic principle been altered . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work." (Emphasis in original; internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996). "The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent." (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d 1286 (1995). In this case, the plaintiff alleges that the defendants did not have any control over her teaching methods or instruction times, and the defendants were only responsible for billing the students and providing her with the court space she needed to conduct her lessons. Accordingly, the plaintiff has adequately alleged that her status as it pertained to the defendants, was that of an independent contractor.
Accordingly, the limitation recognized in Parsons should not be applied to determine whether the plaintiff has adequately alleged a cause of action for negligent infliction of emotional distress. The court is not required, therefore, to consider the defendants' contention that if this limitation is applied, the plaintiff has failed to allege conduct that is adequate to support this cause of action.
"A claim based on the negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm. Thus, to survive a motion to strike, a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior." Olson v. Bristol-Burlington Health District, supra, 87 Conn.App. 7.
Therefore, accordingly, the defendants' motion to strike as to count six is denied.
III Count Seven — Intentional Infliction of Emotional Distress CT Page 3505
In count seven, the plaintiff alleges that the defendants, by engaging in the specific conduct she complains about, intentionally caused her to suffer emotional distress. The defendants argue that this count should be stricken in that the plaintiff fails to allege that they engaged in conduct that was sufficiently severe or outrageous to support this cause of action. The plaintiff counters that she had adequately alleged conduct that supports this cause of action. Our Supreme Court has held that for claims of intentional infliction of emotional distress, "[l]iability . . . has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004).
The plaintiff has failed to allege facts that, if recited to an average member of the community, would arouse a response of outrage. She alleges that the defendants' conduct was outrageous because they were aware that she was unusually susceptible to emotional distress and yet they interfered with her livelihood, threatened or endorsed threatening statements regarding her well being and that of her dogs and publicly disparaged her reputation. None of these allegations reach the level of outrageous that is required to support a cause of action for intentional infliction of emotional distress. As stated by our Supreme Court, "[c]onduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
Therefore, the defendants' motion to strike as to count seven is granted.
SKOLNICK, J.